Washington State Jury Commission

Appendix 4: American Bar Association Jury Standard 20 on Privacy

(For Recommendations 18-20)

American Bar Association Standard 20: Juror Privacy

• JUROR QUESTIONNAIRES SHOULD DIFFERENTIATE BETWEEN INFORMATION COLLECTED FOR THE PURPOSE OF JUROR QUALIFICATION, JURY ADMINISTRATION, AND VOIR DIRE AND PROVIDE A MEANS FOR JURORS TO RESPOND PRIVATELY TO SENSITIVE QUESTIONS.
• THE METHOD OF CONDUCTING VOIR DIRE SHOULD BE THAT BEST SUITED TO PROTECT THE PRIVACY OF POTENTIAL JURORS GIVEN THE NATURE OF INFORMATION SOUGHT AND THE RIGHTS INVOLVED.
• AFTER JURY SELECTION IS COMPLETE, THE COURT SHOULD MAKE INACCESSIBLE TO THE PUBLIC, THE PARTIES, AND THEIR ATTORNEYS ANY INFORMATION COLLECTED IN CONNECTION OR REVEALED DURING VOIR DIRE ABOUT INDIVIDUALS CALLED FOR JURY DUTY BUT NOT SELECTED FOR THE JURY. RECORD RETENTION REQUIREMENTS SHOULD SPECIFY HOW THIS INFORMATION WILL BE MADE INACCESSIBLE. INFORMATION RETAINED FOR SWORN JURORS SHOULD ONLY BE THAT REQUIRED BY STATUTE. <
• BEFORE DISMISSING JURORS FROM JURY DUTY, THE COURT SHOULD INFORM JURORS OF THEIR RIGHTS TO DISCUSS OR TO REFRAIN FROM DISCUSSING THE CASE.
• JURORS SHOULD HAVE THE CONTINUING PROTECTION OF THE COURT IN THE EVENT THAT INDIVIDUALS PERSIST IN QUESTIONING THE JURORS OVER THEIR OBJECTION ABOUT THEIR JURY SERVICE.

COMMENTARY:

Jury duty is a hallmark of democratic government. Unlike elected or appointed positions of public office, however, jury service is not a position that an individual can seek or avoid by choice. Although individuals serving as jurors do not have a constitutional right of privacy, they nevertheless have certain expectations of privacy. For citizens to respond and freely participate in jury service, the court must create an atmosphere of respect for jurors that addresses their expectations of privacy to the greatest extent possible given the need of the justice system to select an impartial jury and provide a fair trial.

Paragraph (a). For each individual who reports for jury duty, the court typically collects three different types of information: qualification information; administrative information; and jury selection (voir dire) information. See generally Standard 11(c)(ii). Qualification information is used by the court to determine whether a prospective juror meets the statutory requirements for service such as citizenship and residency status, age, ability to understand and communicate in English, and criminal conviction status. Administrative information, in contrast, is information that the court needs for the efficient management of its jury system (e.g., address, telephone numbers, Social Security numbers, daily mileage to the courthouse). Finally, the court and counsel require voir dire information to determine the ability of prospective jurors to serve as impartial and objective jurors. Some courts use case specific questionnaires for this information. See G. Thomas Munsterman, Paula L. Hannaford & G. Marc Whitehead, Jury Trial Innovations (NCSC 1997).

Because the court uses juror information for these different purposes, the court should consider the extent to which its policies concerning public access to each type of information should also differ. Qualification and administrative information, for example, are generally not necessary for the attorneys and litigants to make judgments about prospective jurors' ability to be fair and impartial. Nor is this information typically of vital public concern. Thus, the court may reasonably place more restrictions on public and party access to qualification and administrative information than it may on voir dire information.

Paragraph (b). During voir dire, the judge and attorneys solicit personal information about potential jurors to determine their suitability for jury service in a particular trial. Typically, jury panel members are asked to reveal demographic and biographical information; their personal knowledge of the parties, the attorneys, and the specifics about the case; their opinions about the case; and their personal beliefs, attitudes and prior life experiences that might affect their ability to serve as fair and impartial jurors.

Consistent with Standard 7(c), the court should ensure that voir dire questions are relevant to the selection of a fair and impartial jury. Much of the demographic and biographical information is likely to be innocuous and jurors can be asked to answer voir dire questions pertaining to these topics in open court. For inquiring about more personal information, including potentially embarrassing or harmful information, the court should consider alternative methods of voir dire such as in camera voir dire or written questionnaires. In cases likely to involve a high degree of media attention or a strong possibility of physical harm to jurors, the court should consider the use of an anonymous jury to protect juror privacy and safety.

The use of in camera voir dire and written questionnaires are both conducted on the record and counsel for both parties have access to all of the information revealed. Thus, they conform to the requirements of Press Enterprises v. Superior Court (I), 104 S. Ct. 819 (1984). Press Enterprises established criteria for the court to consider before closing court proceedings or sealing the record. Specifically, the court must determine whether a juror has a compelling privacy interest, including protection from physical harm or the threat of physical harm, that outweighs the presumption favoring public access to judicial proceedings. In camera voir dire relieves jury panel members from revealing personal information in open court and in the presence of the entire panel and other individuals, such as court staff or spectators, who may be present in the courtroom. Questionnaires permit panel members to reveal sensitive or personal information in their written responses, rather than publicly.

The use of anonymous juries should be reserved for very limited and extraordinary circumstances. In cases involving very high levels of media attention, in which the identity of jurors is likely to be of significant public interest, maintaining the anonymity of jurors may be appropriate. Similarly, anonymous juries are appropriate for cases in which the parties may attempt to influence or coerce jurors in their decision making process.

Paragraph (c). During jury selection, prospective jurors may be asked to reveal a great deal of personal information. Standard 7(a) provides that juror information collected prior to in-court voir dire should be made available in writing to each party on the day on which jury selection is to begin. From this information, the court and counsel for both parties select a specified number of prospective jurors to serve on the jury. The court then dismisses the remaining prospective jurors or directs them to return to the jury assembly room for consideration on another jury. Unless one of the parties makes a legal objection to the selection of the jury panel, the personal information revealed by individuals not selected for the jury is not relevant to the case and should be made inaccessible to the public. To the extent practical, references to such personal information should be expunged from the formal trial record. The court should also determine the record retention requirements for juror qualification, jury administration, and voir dire.

Paragraph (d). Before they are dismissed from jury duty, jurors should understand their rights concerning post-verdict discussions about the case. See Standard 16(d). In addition to thanking jurors for their service, the court should inform jurors that they are released from their obligation to refrain from discussing the case and that they may choose to discuss or not discuss the case as they wish. As part of this information, the court should inform jurors of any restrictions on the parties or their attorneys concerning post-verdict contact with jurors. See, e.g., U.S. v. Kepreos, 759 F.2d 961 (1st Cir. 1985); U.S. v. Shakur, 1988 U.S. Dist. LEXIS 5162 (S.D. N.Y. 1988); Florida Rules of civil Procedure 1.431(h)(1996). The court may also request that jurors respect the privacy of other jurors and not reveal information disclosed or statements made by those individuals during the deliberations.

Paragraph (e). Although many jurors are willing to talk about their jury experience after the trial, others prefer not to discuss it at all and are uncomfortable if asked about it. Before dismissing the jury, the court should inform jurors that they may call on the protection of the court if individuals persist in questioning them about their jury service. The court should also explain any procedures that jurors should follow to contact the court.