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18
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A JUROR’S PERSONAL PRIVACY EXPECTATION IS EXTREMELY IMPORTANT. JUDGES SHOULD HAVE DISCRETION TO BALANCE A PARTY’S INTEREST OR RIGHT TO KNOW ANY PARTICULAR INFORMATION ABOUT A JUROR WITH THE JUROR’S PRIVACY INTEREST.
WITH THE BALANCE PRESUMPTIVELY IN THE FAVOR OF JUROR PRIVACY, THE GENERAL PUBLIC HAS A RIGHT TO KNOW THAT THE JURY PROCESS IS FAIR AND HAS INTEGRITY. JUDGES MUST EXERCISE DISCRETION TO BALANCE JURORS’ PRIVACY INTERESTS WITH THOSE OF THE GENERAL PUBLIC.
AT A JURY TRIAL, EACH PARTY SHOULD RECEIVE A LIST OF PANEL MEMBERS IMMEDIATELY PRECEDING VOIR DIRE. THIS LIST SHOULD INCLUDE ONLY STATUTORY QUALIFYING INFORMATION. OTHER IDENTIFYING INFORMATION MAY BE PROVIDED AT THE DISCRETION OF THE COURT.
A NEW COURT RULE OR STATUTE SHOULD SPECIFY WHICH JUROR RECORDS ARE PRIVATE AND WHICH ARE PUBLIC. IT SHOULD SPECIFY RETENTION PERIODS FOR EACH TYPE OF JUROR INFORMATION RECORD MAINTAINED BY COUNTY CLERKS.
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Expectation of
Privacy
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The Commission bases this recommendation on the following premises:
First, jurors have a reasonable expectation of privacy. They are citizens who have responded to a court order. Their participation in the legal process is an act of good citizenship and is to be encouraged. Their right to privacy should be balanced with the interests of the general public and the litigants.
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Public and Litigant’s Interest
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Second, the general public and litigants have legitimate interests which may compete with the privacy interests of jurors. The public has an interest in an open judicial process. Litigants have an interest in having information which will allow them more effectively to participate in the choice of a jury.
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Judge Has Discretion Regarding Disclosure
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Third, the judge presiding at a jury trial has inherent discretion to allow greater or lesser disclosure of identifying information to the parties. As discussed in Recommendation 19, a more detailed questionnaire (often part of the summons) may be used by the court as standard procedure. The judge should decide whether to provide that information to the parties or the general public. There should be no presumption that it be provided automatically. The judge may set a hearing upon any party’s or panel-member’s request for greater or lesser disclosure, and should do so when the determination depends on a factual showing. The Commission recommends that, to the extent possible, the hearing be held before voir dire and that panel members be informed of any ruling affecting the scope of disclosure.
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Presumption
of Privacy
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Fourth, there should be a presumption of privacy. Where personal information in addition to statutory qualification information is supplied to the court by jurors, that information should be treated as presumptively private and should not be disclosed to anyone without good cause shown. If disclosed, the court should consider whether protective orders are appropriate.
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Retention of Juror Information
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In addition, because the public has an interest in the fairness and integrity of the jury process, a variety of juror information records are maintained by the county clerks. No court rule or statute currently exists specifying which juror information records are private and which are available as public record. The Commission recommends that such a rule or statute be created. It should also specify retention periods for each type of record and the format in which a record may be maintained.
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Note: Just before the Jury Commission completed its work, the Supreme Court amended GR 15 to establish a presumption of privacy for juror information other than juror names. The amendment allows the parties and their attorneys to petition the court for access to this information. This amendment largely addresses the privacy concerns. Unfortunately, the public’s right of access to juror information is not covered. There should be a mechanism for the public to petition the court as well as counsel and the parties. The public’s right of access to master jury source lists is protected by statutory law. Thus, court clerks currently permit the public to access these records.
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References:
G. Thomas Munsterman, et al., Jury Trial Innovations, pp. 29-31 (privacy considerations in voir dire).
Governor’s Executive Order 00-03 Public Records Privacy Protections (see Appendix 3).
GR 15(j) (regarding access to juror information, see Appendix 5).
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