When Can the Jury be Anonymous?
Last year, a civil jury awarded E. Jean Carroll $83.3 million in compensation for defamation by former president Donald Trump. After the verdict was read, Judge Lewis Kaplan thanked the jury for their service and reportedly stated “my advice to you is that you never disclose you were on this jury.”
Normally they wouldn’t have a choice. For most of American history there was no such thing as an anonymous jury. [1] Even today many states, including New York, require that the identities of jury members be disclosed, at least to the parties themselves. [2] Indeed, in addition to the questioning of potential jurors in voir dire, there is an entire industry of jury consultants dedicated to rapidly scouring the internet for information about potential jurors and preparing detailed reports about their background, social media activity, and other public-facing information.
So, if digging into every aspect of a juror’s identity is the rule, when can the jury instead be anonymous?
Anonymous juries are most frequently found in the federal system and in the criminal context. For example, the Second Circuit follows a two-part test in deciding whether to keep a jury anonymous. First, there must be a “strong reason to believe that the jury needs protection.” [3] Second, “reasonable precaution must be taken to minimize the effect that such a decision might have on the jurors' opinions of the defendants.” Other Circuits follow a substantially similar standard. [4]
Why might a jury need protection? The Eleventh Circuit articulated a non-exclusive list of factors in U.S. v. Ross, [5] which have been cited with approval by other [6] Courts of Appeals. The factors include:
(1) the defendant's involvement in organized crime,
(2) the defendant's participation in a group with the capacity to harm jurors,
(3) the defendant's past attempts to interfere with the judicial process,
(4) the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and
(5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation or harassment. [7]
But in essence, if a court concludes that the defendant is a bad dude facing serious charges and has ties to an organization that could plausibly intimidate and/or harm a jury, it can withhold jurors’ biographical information from the parties and their counsel.
While there is some nod in the caselaw to a need not to make this highly-prejudicial assessment of the defendant’s character explicit to the jury – i.e. “Please don’t use your real name in court because the Defendant will probably murder you” – different courts apply somewhat inconsistent approaches to addressing this concern. For example, while the Second Circuit has not explicitly endorsed lying to the jury about why they are anonymous, it has upheld giving the jury a “believable explanation” for the anonymity that was totally unrelated to why the court decided to order it. [8] In contrast, other courts have called the Second Circuit approach as “a subterfuge which concealed the actual reason for preserving anonymity” and instead told the jury “that they would hear testimony about organized crime, and that he wanted them to consider the case without any apprehension that they or their families would be endangered." [9]While arguably more honest, it is difficult to see how this would not be prejudicial.
Given their origin in the prosecution of organized crime, you might assume that anonymous juries could never be ordered in civil cases. But it has been done on rare occasion. In U.S. v. Real Prop. Known as 77 E. 3rd St., New York, N.Y., [10] Judge Sotomayor (then on the district court) presided over a civil forfeiture case against a building used by the New York City chapter of the Hells Angels motorcycle club. While a civil proceeding, Judge Sotomayor ordered that an anonymous jury be empaneled, noting that the Hells Angels have an extremely lengthy history of witness and juror intimidation in criminal proceedings against members. While acknowledging that the court had “not found a reported decision in this district ordering that an anonymous jury be impaneled in a civil case,” Judge Sotomayor indicated that “I do not believe that the governing standards should be any different from those applied in the criminal context.” [11]
And that takes us back to last year where Judge Kaplan in the Southern District of New York empaneled an anonymous jury in a civil defamation suit against former President Donald Trump. [12] The court noted that the matter was “a unique case,” given that the claims were against a former president and that numerous individuals charged with crimes “have argued that their actions were attributable to what the individuals perceived, rightly or wrongly, as incitement by Mr. Trump.” [13] Nevertheless, the court applied the same two-part test for juror anonymity that the Second Circuit had upheld in the criminal context. In doing so, it concluded that “[i]f jurors’ identities were disclosed, there would be a strong likelihood of unwanted media attention to the jurors, influence attempts, and/or of harassment or worse of jurors by supporters of Mr. Trump” and that as a consequence “the names, addresses, and places of employment of prospective jurors on the voir dire panel, as well as jurors who ultimately are selected for the petit jury, shall not be revealed.” [14]
Despite these examples, anonymous juries are clearly the exception, and the average civil trial lawyer is unlikely to encounter one. But in situations where potential jury tampering is a concern or the defendant is genuinely a “very bad dude,” the possibility – even if remote – of empaneling an anonymous jury is something to keep in mind.
[1] The phenomenon emerges from the federal system and was largely unknown prior to organized crime prosecutions in the 1970s. See Abramovsky, Abraham & Edelstein, Jonathan I., Anonymous Juries: In Exigent Circumstances Only, 13 St. John's J. Legal Comment. 457 (1999) (“Slightly more than twenty years ago in United States v. Barnes, a federal trial judge in the Southern District of New York empaneled the first fully anonymous jury in American history.”).
[2] Some states, such as Nebraska and Kansas, permit anonymous juries. See State v. Sandoval, 280 Neb. 309, 332 (2010); State v. Brown, 280 Kan. 65, 75 (2005). But others, notably New York, prohibit them. People v. Flores, 153 A.D.3d 182 (2d Dep’t 2017) aff'd, 32 N.Y.3d 1087 (2018). For this reason, while Justice Merchan prohibited the public disclosure of juror identities in former President Trump’s criminal trial, he did not restrict access to counsel or to Trump himself. See https://www.nycourts.gov/LegacyPDFS/press/PDFs/People-v.DJT-Dec-OrderAnonymousJury.pdf
[3] U.S. v. Vario, 943 F.2d 236, 239 (2d Cir. 1991).
[4] See U.S. v. Dinkins, 691 F.3d 358, 372 (4th Cir. 2012) (“we hold that a district court may empanel an anonymous jury only in rare circumstances when two conditions are met: (1) there is strong reason to conclude that the jury needs protection from interference or harm, or that the integrity of the jury's function will be compromised absent anonymity; and (2) reasonable safeguards have been adopted to minimize the risk that the rights of the accused will be infringed.”) (collecting cases).
[5] 33 F.3d 1507 (11th Cir. 1994).
[6] See, e.g., U.S. v. Castillo-Rubio, 34 F.4th 404 (5th Cir. 2022) (citing identical factors).
[7] 33 F.3d at 1520.
[8] U.S. v. Thomas, 757 F.2d 1359, 1364 (2d Cir. 1985) (praising the trial judge who “gave the jury an intelligent, reasonable and believable explanation for his actions” that was different than the actual reasons.).
[9] U.S. v. Scarfo, 850 F.2d 1015, 1017, 1025 (3d Cir. 1988).
[10] 849 F. Supp. 876 (S.D.N.Y. 1994).
[11] Id. at 879.
[12] Carroll v. Trump, 663 F.Supp.3d 380 (2023).
[13] Id. at 381.
[14] Id. at 385.
